Date: 20040831
Docket: T-1315-02
Citation: 2004 FC 1197
ADMIRALTY ACTION IN REM AGAINST THE VESSEL "MAPLEGLEN"
AND IN PERSONAM
SIMPLIFIED ACTION
BETWEEN:
PARRISH & HEIMBECKER LIMITED
Plaintiff
and
THE OWNERS AND ALL THE OTHERS INTERESTED
IN THE SHIP "MAPLEGLEN",
THE SHIP "MAPLEGLEN" and
CANADIAN STEAMSHIP LINES INC.
Defendants
[1] Following a pretrial conference on 27 May 2004 this matter, a claim involving an alleged 41.34 tonne short delivery of grain on a brief Great Lakes voyage between the grain loading terminal at Thunder Bay, Ontario, to the discharging terminal at Goderich, Ontario, near the southeastern end of Lake Huron, this matter was set by order for trial for two days beginning 4 October 2004.
[2] The Plaintiff, having reassessed its case, now believes that the receiving grain terminal, which was either the agent of the Plaintiff or the bailee of the Plaintiff's grain, rather than being a source of a witness and evidence as to short receipt on discharging, should be a party. The Plaintiff therefore seeks to add Goderich Elevator Limited as a party and this requires an adjournment of the trial.
[3] The Federal Court does not overbook trials. Thus adjournments will be considered only in the most exceptional circumstances. This is set out in Practice Note Number 4 of 17 February 1993, referred to from time to time in the case law including, fairly recently, by Mr. Justice Rothstein, as he then was, in Canadian Council of Professional Engineers v. Memorial University of Newfoundland, an unreported 30 July 1999 decision in file T-1164-97. At issue in that case was the production of additional documents about which the plaintiff knew but had not obtained in a timely manner. Mr. Justice Rothstein held that the requirement of Practice Direction Number 4, which is as follows:
The Federal Court does not overbook its trial sittings. Adjournments therefore cause serious inconvenience and expense.
When the Court has fixed a date for trial or for a hearing, all counsel will be expected to proceed on the date fixed. Requests to adjourn must be made to the Associate Chief Justice and unless made promptly after the fixing of a hearing date, will be considered only in the most exceptional circumstances.
had not been met, for there were no exceptional circumstances. Therefore an adjournment was denied.
[4] I am aware of the fact that the pre-1998 Rules, under which the practice direction was issued, dealt with adjournments in terms which differ from Rule 36(1) which now provides:
Adjournment - A hearing may be adjourned by the Court from time to time on such terms as the Court considers just.
The wording in Rule 36.1 would seem to offer some latitude. Moreover, I am aware, as a guide, but not as a principle binding on this Court, of Federal Court of Appeal Circular Number 1/2000 which provides that:
Requests for an adjournment
Once a hearing date is fixed, adjournments will not routinely be granted, even on consent. Any requests for adjournment must be made by motion to the Court with an affidavit in support detailing the reasons for the request.
All this being said the test in the Federal Court remains that affirmed by Mr. Justice Rothstein in Memorial University of Newfoundland (supra), that of exceptional circumstances.
[5] Recently the Federal Court and the Federal Court of Appeal have considered adjournments, in appropriate circumstances, involving events changing the factual foundation buttressing the proceeding, as in Misquadis v. Attorney General of Canada, an unreported 24 February 1999 decision in file T-1314-98 in which an adjournment was allowed and in Society of Authors, Composers and Music Publishers of Canada v. Landmark Cinemas of Canada Ltd., an unreported 5 February 2004 decision of the Court of Appeal, 2004 FCA 57, file A-194-03. The latter was based upon an adjournment imposed by the Court because new defendants were to be added so that, in the view of the prothonotary who ordered the initial adjournment, all matters in dispute would be properly dealt with.
[6] In the present instance the complexion of the case has changed. The Plaintiffs now realize that the minor shortage of grain may be a reflection of the misplacement or loss of one weigh scale ticket by Goderich Elevator and that Goderich Elevator my in fact have received all of the grain, for certainly the grain was put aboard the Mapleglen and all of the grain aboard was discharged from the Mapleglen, with apparently opportunity for just over 41 tonnes to go missing. Moreover, while Goderich Elevator could provide the evidence essential to demonstrate the amount of grain it received, it is leaving aside a separate action, a party that may be required to eventually resolve the problem, for it may be that Goderich Elevator in fact have the missing grain. Thus, without more, I would be inclined to grant the adjournment. However there are other factors by which an adjournment must be denied.
[7] To begin, in the present circumstances, in order to prove the short delivery, the Plaintiff needs more than merely a letter from the Canadian Grain Commission vouching for the accuracy of the loading and discharging scales and a third party examination of elevator records, probably without the benefit of a legal bent of mind, for that evidence is third hand. However, the Canadian Grain Commission did, in a letter of 25 November 2002, raise the issue of missing grain scale tickets which might in some instances explain anomalies. Thus it would be essential that the Plaintiff obtain the underlying and basic record for the discharge, the scale tickets, in order to prove the short delivery.
[8] The importance of the scale tickets, as proof of the case, was not lost on counsel for the Defendants. On 30 October 2002, before receipt of the Canada Grain Commission letter reporting on the accuracy of the discharge scales, defence counsel had written to request production of the Goderich Elevator scale tickets by the Plaintiff. The response, in due course, was that there was nothing wrong with the unloading scale tickets and that the Plaintiff could see no basis for a defence.
[9] On 19 January 2003 counsel for the Defendants specifically asked, among the written discovery questions, whether the Plaintiff had ever reviewed the unloading scale tickets from Goderich Elevator. The response, in the written answers to the discovery questions, was that:
Parrish will not request the scale tickets from Goderich Elevator with respect to the unloading of the goods.
It was not until the pretrial conference of 27 May 2004 that the Court ordered the Plaintiff to use best efforts to obtain the original discharge scale tickets from Goderich Elevators Limited.
[10] When the scale tickets were produced by the Plaintiff it became evident that each scale ticket produced was for approximately 91,000 pounds, being very near to the weight of the apparently missing cargo. This bolstered the position of the Defendants that they had delivered all of the grain that was aboard. It also provided a sound circumstantial basis for their defence: if cargo appeared to be missing it was probably a situation of a lost or misplaced scale ticket.
[11] The Defendants have already gone to some lengths to make arrangements for the master of the vessel to travel to Vancouver for the trial, a master being employed on a vessel and not resident of Canada. Here I note that the case is now three years old: further delay will not improve the recollection of witnesses.
[12] The matter seems not to involve any great principle, or to be a case to establish a precedent, but merely involves $13,221.89 worth of grain and that is perhaps an explanation for, but not an excuse by which to relieve the Plaintiffs from producing less than a full set of documents and a proper case.
[13] I recognize that denying the Plaintiffs an adjournment may well result in separate proceedings against Goderich Elevator, however against this I weigh the fact that the Plaintiff has been less than vigorous in pursuing this action in a matter which is over three years old.
[14] While it may be that the complexion and underpinnings of this action have changed, by reason of the recent production by the Plaintiff of the scale tickets, the need for the scale tickets was brought to the attention of the Plaintiff in October of 2002. The failure to take the matter of the scale tickets seriously, leading to the recent discovery that the scale tickets are critical, is not an exceptional circumstance requiring an adjournment and indeed, if the scale tickets are in good order and are complete, thus establishing short delivery, all that is needed is a witness from Goderich Elevator Ltd. to sort matters out. In the alternative, the Plaintiffs have brought the present difficulties upon themselves.
[15] The adjournment is denied.
[16] To allow the addition of Goderich Elevator Ltd. as a defendant, at this point, would be meaningless, given the denial of the adjournment.
[17] Costs, as may be taxed, to the Defendants.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
August 31, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1315-02
STYLE OF CAUSE: Parrish & Heimbecker Limited
- and -
The Ship "MAPLEGLEN" et al
PLACE OF HEARING: Vancouver
DATE OF HEARING: August 30, 2004
REASONS FOR ORDER : HARGRAVE P.
DATED: August 31, 2004
APPEARANCES:
Mr. J. William Perret FOR PLAINTIFF
Mr. Peter Swanson FOR DEFENDANTS
SOLICITORS OF RECORD:
Bromley Chapelski FOR PLAINTIFF
(Vancouver)
Bernard & Partners FOR DEFENDANTS
(Vancouver)